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Fundamentals for establishing new offices in the intracompany transferee context

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Fundamentals for Establishing “New Offices”
in the Intracompany Transferee Context
By Joseph P. Whalen (October 1, 2013)
INTRODUCTION
The “L” non-immigrant classification is for intracompany transferees
who are either employed in a managerial or executive capacity (L1-
A) or who possess certain specialized knowledge of the employer’s
products, processes, or procedures (L1-B); and such knowledge can
normally be considered as proprietary information and thus
confined to employees of that company.
INTRACOMPANY TRANSFEREE DEFINED
This bifurcated non-immigrant worker category is statutorily
defined at INA §101(a)(15)(L); 8 USC §1101(a)(15)(L) as follows:
§1101 [INA 101]. Definitions
(a) As used in this chapter—
* * * * *
(15) The term “immigrant” means every alien except an alien
who is within one of the following classes of nonimmigrant
aliens—
* * * * *
(L) subject to section 1184(c)(2) of this title [INA section
214(c)(2)], an alien who, within 3 years preceding the
time of his application for admission into the United
States, has been employed continuously for one year by a
firm or corporation or other legal entity or an
affiliate or subsidiary thereof and who seeks to enter
the United States temporarily in order to continue to
render his services to the same employer or a subsidiary
or affiliate thereof in a capacity that is managerial,
executive, or involves specialized knowledge, and the
alien spouse and minor children1 of any such alien if
accompanying him or following to join him;
1
These dependents are lumped together as L-2 non-immigrants. The spouse is allowed to apply for work
authorization from USCIS (an EAD), the children are not allowed to seek work authorization as an L-2.

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Additional definitions come into play when adjudicating requests for
classification as an intracompany transferee, a manager, an executive
or in possession of specialized knowledge. Let’s explore some of the
key legal definitions involved from the statute and regulations.
THE “L” PETITIONER
For purposes of qualifying the petitioner, a business relationship
must be established between the foreign employer and the U.S.
employer (petitioner) and meet the applicable legal definitions. See
INA § 101(a)(28) [8 USC § 1101(a)(28)].
(28) The term “organization” means, but is not limited to, an
organization, corporation, company, partnership, association,
trust, foundation or fund; and includes a group of persons,
whether or not incorporated, permanently or temporarily
associated together with joint action on any subject or subjects.
As noted in the L classification definition, the non-immigrant worker
must be coming to the U.S. to work for “the same employer or a
subsidiary or affiliate thereof”.
Turning momentarily to a sister section of the statute which is also in
play, we will find more information than desired but also, another key
definition. However, in addition to that definition of “specialized
knowledge” we find three important terms, in subparagraphs (F),
that are not statutorily defined. They are: affiliate, subsidiary, or
parent. These three terms among others will be discussed further
below the following excerpt from the statute.
§1184. Admission of nonimmigrants.
* * * * *
(c) Petition of importing employer
* * * * *
(2)(A) The [Secretary of Homeland Security]shall provide
for a procedure under which an importing employer which
meets requirements established by the [Secretary of
Homeland Security]may file a blanket petition to import
aliens as nonimmigrants described in section 1101(a)(15)(L)

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of this title instead of filing individual petitions under
paragraph (1) to import such aliens. Such procedure shall
permit the expedited processing of visas for admission of
aliens covered under such a petition.
(B) For purposes of section 1101(a)(15)(L) of this title, an
alien is considered to be serving in a capacity involving
specialized knowledge with respect to a company if the
alien has a special knowledge of the company product and its
application in international markets or has an advanced level
of knowledge of processes and procedures of the company.
(C) The [Secretary of Homeland Security]shall provide a
process for reviewing and acting upon petitions under this
subsection with respect to nonimmigrants described in
section 1101(a)(15)(L) of this title within 30 days after the
date a completed petition has been filed.
(D) The period of authorized admission for—
(i) a nonimmigrant admitted to render services in a
managerial or executive capacity under section
1101(a)(15)(L) of this title shall not exceed 7 years, or
(ii) a nonimmigrant admitted to render services in a
capacity that involves specialized knowledge under section
1101(a)(15)(L) of this title shall not exceed 5 years.
(E) In the case of an alien spouse admitted under section
1101(a)(15)(L) of this title, who is accompanying or following
to join a principal alien admitted under such section, the
[Secretary of Homeland Security]shall authorize the alien
spouse to engage in employment in the United States and
provide the spouse with an “employment authorized”
endorsement or other appropriate work permit.
(F) An alien who will serve in a capacity involving
specialized knowledge with respect to an employer for
purposes of section 1101(a)(15)(L) of this title and will be
stationed primarily at the worksite of an employer
other than the petitioning employer or its affiliate,

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subsidiary, or parent shall not be eligible for
classification under section 1101(a)(15)(L) of this title if—
(i) the alien will be controlled and supervised principally
by such unaffiliated employer; or
(ii) the placement of the alien at the worksite of the
unaffiliated employer is essentially an arrangement to
provide labor for hire for the unaffiliated employer, rather
than a placement in connection with the provision of a
product or service for which specialized knowledge specific
to the petitioning employer is necessary.
PETITIONER-RELATED BUSINESS-TYPE DEFINITIONS
As noted above, for purposes of qualifying the petitioner, a business
relationship must be established between the foreign employer and
the U.S. employer (petitioner). There will be more on that subject
later. In that the business relationship may take various forms, we
need to examine widely accepted definitions of words used in the
statute itself for which that statute provides no definition. The
commonly used terms “affiliate”, “subsidiary”, and “parent
company” among others must also meet the applicable business
definitions.
The implementing regulations pertinent and specific to the L
classification include some additional terms and do actually define
them.
(l) Intracompany transferees—
* * * * *
(1) Admission of intracompany transferees—
(ii) Definitions—
* * * * *
(G) Qualifying organization means a United States
or foreign firm, corporation, or other legal entity
which:
(1) Meets exactly one of the qualifying
relationships specified in the definitions of a

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parent, branch, affiliate or subsidiary specified
in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in
international trade is not required) as an
employer in the United States and in at least
one other country directly or through a
parent, branch, affiliate, or subsidiary for the
duration of the alien's stay in the United
States as an intracompany transferee; and
(3) Otherwise meets the requirements of
section 101(a)(15)(L) of the Act.
(H) Doing business2 means the regular, systematic,
and continuous provision of goods and/or services
by a qualifying organization and does not include
the mere presence of an agent or office of the
qualifying organization in the United States and
abroad.
(I) Parent means a firm, corporation, or other legal
entity which has subsidiaries.
(J) Branch means an operating division or office of
the same organization housed in a different
location.
(K) Subsidiary means a firm, corporation, or other
legal entity of which a parent owns, directly or
indirectly, more than half of the entity and controls
the entity; or owns, directly or indirectly, half of the
entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and
has equal control and veto power over the entity; or
owns, directly or indirectly, less than half of the
entity, but in fact controls the entity.
2
Making this determination is the underlying consideration as to whether or not it is a “New Office”.

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(L) Affiliate means
(1) One of two subsidiaries both of which are
owned and controlled by the same parent or
individual, or
(2) One of two legal entities owned and
controlled by the same group of individuals,
each individual owning and controlling
approximately the same share or proportion
of each entity, or
(3) In the case of a partnership that is
organized in the United States to provide
accounting services along with managerial
and/or consulting services and that markets
its accounting services under an
internationally recognized name under an
agreement with a worldwide coordinating
organization that is owned and controlled by
the member accounting firms, a partnership
(or similar organization) that is organized
outside the United States to provide
accounting services shall be considered to be
an affiliate of the United States partnership if
it markets its accounting services under the
same internationally recognized name under
the agreement with the worldwide
coordinating organization of which the United
States partnership is also a member.
To provide some additional clarity on these common varieties of
businesses and the terms used to describe them, I looked to the
internet and found several reliable sources. After considering a few, I
settled on www.investopedia.com. Here are some “cut-and-pasted”
blurbs from the Investopedia website. I especially like them for their
explanation sections.

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Definition of 'Branch Office'
A location, other than the main office, where business is conducted. Most
branch offices are comprised of smaller divisions of different aspects of the
company such as human resources, marketing, accounting, etc. A branch
office will typically have a branch manager who will report directly to, and
take orders from, a management member of the main office.
Investopedia explains 'Branch Office'
Branch offices are useful in that it allows the administrative aspect of the
business to be conducted in locations around the globe. For example,
Starbucks has branch offices so as to be able to meet closely with the stores
district managers in a more cost effective manner, as well as cater to, and
be more informed in, the needs of specific locations.
Above at: http://www.investopedia.com/terms/b/branch-office.asp
Definition of 'Affiliate'
A type of inter-company relationship in which one of the companies owns
less than a majority of the other company's stock, or a type of inter-
company relationship in which at least two different companies are
subsidiaries of a larger company.
Investopedia explains 'Affiliate'
For example, let's say BIG Corp. owns 40% of MID Corp.'s common stock
and 75% of TINY Corp. In this case, MID Corp. and BIG Corp. have an
affiliate relationship, and TINY Corp. is BIG Corp.'s subsidiary.
However, note that for the purposes of filing consolidated tax returns, IRS
regulations state that a parent company must possess at least 80% of a
company's voting stock in order to be considered affiliated.
Above at: http://www.investopedia.com/terms/a/affiliate.asp
Definition of 'Affiliated Companies'
Companies that are less than 50% owned by a parent company; the
parents are minority shareholders. More loosely, the term "affiliated
companies" is sometimes used to refer to companies that are related to
each other in some way. For example, Bank of America has numerous
affiliated companies, including Banc of America, US Trust, Landsafe,
Balboa and Merrill Lynch.
Investopedia explains 'Affiliated Companies'
By way of contrast, a subsidiary is more than 50% owned by its parent; the
parent is a majority shareholder. Affiliates and subsidiaries are common
ways for banks to enter foreign markets and be allowed to underwrite

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securities. Affiliates and subsidiaries are also used in foreign markets to
give the impression that the company is not foreign-owned and thereby
avoid any negative consequences that might be associated with consumers'
perceptions of foreign ownership. For example, consumer goods company
Unilever is a Dutch and British company; it calls its Indian subsidiary
Hindustan Unilever.
Above at: http://www.investopedia.com/terms/a/affiliatedcompanies.asp
Definition of 'Subsidiary'
A company whose voting stock is more than 50% controlled by another
company, usually referred to as the parent company or holding company.
A subsidiary is a company that is partly or completely owned by another
company that holds a controlling interest in the subsidiary company. If a
parent company owns a foreign subsidiary, the company under which the
subsidiary is incorporated must follow the laws of the country where the
subsidiary operates, and the parent company still carries the foreign
subsidiary's financials on its books (consolidated financial statements).
For the purposes of liability, taxation and regulation, subsidiaries are
distinct legal entities.
Investopedia explains 'Subsidiary'
The purchase of a controlling interest differs from a merger and the parent
corporation can acquire the controlling interest with a smaller investment.
Additionally, stockholder approval is not required in the formation of a
subsidiary as it would be in the event of a merger. Famous investor
Warren Buffett's Berkshire Hathaway, Inc. has a long and diverse list of
subsidiaries, including Clayton Homes, the Pampered Chef, GEICO Auto
Insurance and Helzberg Diamonds.
Above at: http://www.investopedia.com/terms/s/subsidiary.asp
Definition of 'Parent Company'
A company that controls other companies by owning an influential
amount of voting stock or control. Parent companies will typically be
larger firms that exhibit control over one or more small subsidiaries in
either the same industry or other industries. Parent companies can be
either hands-on or hands-off with subsidiaries, depending on the amount
of managerial control given to subsidiary managers.
Investopedia explains 'Parent Company'
Companies can become parent companies by many different means. The
two most common ways are through the acquisitions of smaller companies
and the spinoff or creation of subsidiaries. For the purposes of accounting,

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parent companies report results of subsidiaries on audited statements
when subsidiaries fall under the same corporate identity.
Above at: http://www.investopedia.com/terms/p/parentcompany.asp
Definition of 'Holding Company'
A parent corporation that owns enough voting stock in another
corporation to control its board of directors (and, therefore, controls its
policies and management).
Investopedia explains 'Holding Company'
A holding company must own at least 80% of voting stock to get tax
consolidation benefits, such as tax-free dividends.
Above at: http://www.investopedia.com/terms/h/holdingcompany.asp
Definition of 'Firm'
A business organization, such as a corporation, limited liability company
or partnership. Firms are typically associated with business organizations
that practice law, but the term can be used for a wide variety or business
operation units.
Investopedia explains 'Firm'
While business activities are typically conducted under the firm's name,
the legal protection to employees or owners depends on the type of
organization it was created under. Some organizational types, such as
corporations, provide more protection than others.
Above at: http://www.investopedia.com/terms/f/firm.asp
Definition of 'Organizational Structure'
Explicit and implicit institutional rules and policies designed to provide a
structure where various work roles and responsibilities are delegated,
controlled and coordinated. Organizational structure also determines how
information flows from level to level within the company. In a centralized
structure, decisions flow from the top down. In a decentralized structure,
the decisions are made at various different levels.
Investopedia explains 'Organizational Structure'
A good organizational structure can often spell the difference between a
smooth operating organization and one in chaos. By establishing a
hierarchical structure with a clear chain of command, companies are
better able to streamline their operations.
Above at: http://www.investopedia.com/terms/o/organizational-
structure.asp

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FOREIGN & U.S. EMPLOYERS’ BUSINESS RELATIONSHIP
In the context of the intracompany transferee, where the employer
is itself composed of multiple components, including but not limited
to parents, subsidiaries, and/or affiliates etc… within its overall or
umbrella “organization”, the concept of employer is loosely defined
but not never-ending. There will be situations where the connection
is too tenuous and the nexus between the foreign and U.S. employers
ceases to be possible, plausible, probable, and most of all credible.
For example, where services of company A will be paid for by
company B to apply its proprietary knowledge on behalf of company
B, which is actually a “seller or service-provider-to-customer”
relationship. As such company B who is merely the “customer”
cannot petition on behalf of any employee of company A because no
proper and qualifying business relationship exists to justify filing any
intracompany transferee I-129 petition. These aspects involve
specific-fact-dependent judgments on the merits and will be a
“findings-of-fact” by an adjudicator based upon the evidence
presented and any arguments submitted on brief as well as any and
all narrative statement(s) offering explanation(s).
QUALIFYING L-1 POSITIONS
Characterizing the Position
For purposes of qualifying the positions (note the use of the plural
form), the actual job duties performed for the foreign employer as
well as the U.S. employer; and the level of performance of those
duties by the beneficiary must all meet the applicable legal
definitions. See INA § 101(a)(44) [8 USC § 1101(a)(44)]. Lastly, a
proper employer-employee relationship must have existed abroad for
one solid year within the prior three years and an employer-employee
relationship must commence for the U.S. employer after entry as an L
non-immigrant worker (intracompany transferee).
In the “new office” context, special consideration is given, via
implementing regulations, to a manager or executive whose task is to
actually establish that new office. The new office context is explored
further below. As noted above, “specialized knowledge” is defined for
the L1-B classification. The key concepts involved in the L1-A

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classification are also statutorily defined. I feel that it is important to
recite those actual statutory definitions also in play, here goes.
(44)(A) The term “managerial capacity” means an
assignment within an organization in which the employee
primarily—
(i) manages the organization, or a department, subdivision,
function, or component of the organization;
(ii) supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential
function within the organization, or a department or
subdivision of the organization;
(iii) if another employee or other employees are directly
supervised, has the authority to hire and fire or recommend
those as well as other personnel actions (such as promotion and
leave authorization) or, if no other employee is directly
supervised, functions at a senior level within the organizational
hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the
activity or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of the supervisor's
supervisory duties unless the employees supervised are
professional.
(B) The term “executive capacity” means an assignment
within an organization in which the employee primarily—
(i) directs the management of the organization or a major
component or function3 of the organization;
(ii) establishes the goals and policies of the organization,
component, or function;
(iii) exercises wide latitude in discretionary decision-making;
and
(iv) receives only general supervision or direction from higher
level executives, the board of directors, or stockholders of the
organization.
3
There will be greater discussion about the “functional manager” further below.

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(C) If staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity,
[then] the [Secretary of Homeland Security] shall take into
account the reasonable needs of the organization, component, or
function in light of the overall purpose and stage of development
of the organization, component, or function. An individual shall
not be considered to be acting in a managerial or executive
capacity (as previously defined) merely on the basis of the
number of employees that the individual supervises or has
supervised or directs or has directed.
To reiterate and emphasize the definition of specialized knowledge
INA § 214(c)(2)(B) states in pertinent part:
“….. an alien is considered to be serving in a capacity
involving specialized knowledge ….. if the alien has a
special knowledge of the company product and its application
in international markets or has an advanced level of
knowledge of processes and procedures of the company.”
The first use of the word “the” to demarcate the word “company”
has a specific meaning in the English language. It is indicative of
denoting a singular noun with specificity. This specialized or
advanced level of knowledge is knowledge confined to that single
“employer” as indicated by the second use of the article “the” to
identify the same “company” as thereby the “same employer” in
possession of said specialized or advanced knowledge. As previously
mentioned, in the vast majority of cases, the specialized or advanced
knowledge is, in fact, protected, proprietary information that may
include: patented processes, secret recipes or formulas, or “trade
secrets” that could easily be the object of industrial espionage.
RECENT L1-B CASE OF NOTE
On August 9, 2013, the United States Court for the District of
Columbia, rendered a decision consistent with numerous prior
decisions in a case captioned as Fogo De Chao Churrascaria,
LLC v. Department of Homeland Security, Civil Action No. 10-

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1024 (RBW).4 In that decision, the Court extracted the following
summary of AAO’s position and the questions it sought to answer:
(1) what is the appropriate standard that should be applied to
determine “specialized knowledge”;
(2) whether [petitioner’s] churrasqueiro5 chef position requires
specialized knowledge according to that standard; and
(3) whether [the beneficiary] . . . possesses specialized
knowledge, and has been and will be employed in a specialized
knowledge capacity.
Id. At pp. 5-6.
This is not the first Brazilian barbecue case!6
L1-A FUNCTION MANAGERS
I believe that the best way to approach the topic of the “function
manager” is to see how AAO has recently treated the subject. The
following is an excerpt on this very point:
The director denied the petition on March 24, 2010 based on a finding that the petitioner
failed to establish that the beneficiary will be employed in the United States in a primarily
managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a
motion and forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner
asserts that the director's decision was based on the erroneous assumption that he would be
managing professional employees. Counsel asserts that the regulations allow an L-l A visa
holder to manage an essential function of the organization and contends that the beneficiary in
this matter qualifies as a function manager.
* * * * *
II. Discussion
The sole issue addressed by the director is whether the petitioner established that the
beneficiary would be employed in a qualifying managerial or executive capacity under the
extended petition. The AAO notes that the petitioner does not claim that the beneficiary will
be employed in an executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 101 (a)(44)(A), defines the term "managerial
capacity" as an assignment within an organization in which the employee primarily:
4
You’ll have to look elsewhere to get a better citation when and if it is reported.
5
Brazilian cowboy (gaucho) barbeque.
6
See many cases of note at: http://www.slideshare.net/BigJoe5/l-non-immigrant-precedent-decisions-
19701989present

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(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within the organization, or a
department or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the
authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization), or if no other employee is directly
supervised, functions at a senior level within the organizational hierarchy or with
respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function
for which the employee has authority. A first-line supervisor is not considered to
be acting in a managerial capacity merely by virtue of the supervisor's
supervisory duties unless the employees supervised are professional.
* * * * *
B. Analysis
For the reasons discussed herein, the petitioner has not established that the beneficiary will be
employed in the United States in a primarily managerial capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look
first to the petitioner's description of the job duties. See 8 C.P.R. § 214.2(l)(3)(ii). The
petitioner's description of the job duties must clearly describe the duties to be performed by
the beneficiary and indicate whether such duties are either in an executive or managerial
capacity. Id.
The definitions of executive and managerial capacity each have two parts. First, the
petitioner must show that the beneficiary performs the high-level responsibilities that are
specified in the definitions. Second, the petitioner must show that the beneficiary
primarily performs these specified responsibilities and does not spend a majority of his or
her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table),
1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the
beneficiary exercises the appropriate level of authority over the petitioner's business, the
totality of the evidence submitted does not demonstrate that the beneficiary's actual duties
will be primarily managerial in nature.
* * * * *
On appeal, counsel asserts that the director erred by failing to conclude that the
beneficiary is employed as a function manager. The term "function manager" applies
generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii).
The term "essential function" is not defined by statute or regulation. If a petitioner claims
that the beneficiary is managing an essential function, the petitioner must furnish a
detailed position description describing the duties to be performed in managing the
essential function, i.e. identify the function with specificity, articulate the essential nature
of the function, and establish the proportion of the beneficiary's daily duties attributed to
managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's

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description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. An employee
who primarily performs the tasks necessary to produce a product or to provide services is
not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology Intn'l.,
19 I&N Dec. 593, 604 (Comm. 1988).
Here, the petitioner has not clearly identified the essential function managed by the
beneficiary, nor has it sustained its burden of demonstrating that his duties are
"primarily" managerial, for the reasons already discussed. Further, even though a
function manager is not required to directly supervise or control a subordinate staff, the
petitioner must still establish that someone other than the beneficiary is responsible for
performing the day-to-day, non-managerial functions associated with the operation of the
petitioner's business, particularly if the beneficiary is the sole employee of the company.
Counsel may be claiming that the beneficiary is managing the function of establishing the
new office in the United States. The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the
intended United States operation one year within the date of approval of the petition to
establish the new office. When a new business is first established and commences
operations, the regulations recognize that a designated manager or executive responsible
for setting up operations will be engaged in a variety of activities not normally performed
by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed in that first year. In an accommodation
that is more lenient than the strict language of the statute, the "new office" regulations
allow a newly established petitioner one year to develop to a point that it can support the
employment of an alien in a primarily managerial or executive position. The only
provision that allows for the extension of a "new office" visa petition requires the
petitioner to demonstrate that it is staffed and has been "doing business" in a regular,
systematic, and continuous manner for the previous year. 8 C.F.R. § 214.2(l)(14)(ii). The
petitioner cannot request an extension of a petition involving a new office on the premise
that the beneficiary will continue to oversee establishment and staffing of the [new]
office.
Above from: May032012_01D7101.pdf
The lesson I am taking away from the AAO’s discussion
and analysis is that detail and specificity rule the day.
Vague descriptions of the beneficiary’s duties; hyperbolic assertions
not backed up with corroborating documentary (or testimonial)
evidence; and lack of specificity as to the key elements of the position
such as: 1.) naming/identifying the function that the petitioner is
claiming the beneficiary manages, and 2.) the identification of actual
job duties performed by the beneficiary broken down into
quantifiable percentages; will be found insufficient for approval of the
petition.

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Page 16
THE L1-A “NEW OFFICE” PETITION
The following excerpts7 are from a rather recent AAO non-precedent
decision8 and as such is itself not binding, however, the statutory
language and regulatory language is binding. The AAO’s minor
commentary included herein is not new but instead is a reiteration of
what has come before in various federal court cases and a few
Administrative Precedent Decisions. This recent sample serves the
purpose of providing a source of reference, quotes, and citations.
The above regulation is applicable to the extension of an L visa
following the first year wherein the new office was established. How
does one get that first year approved in the first place? To answer
that question me must examine 8 CFR 214.2(l)(3)(v) and (vi).
7
The excerpt should be easy to spot as they are cut-and-pasted images that look different from the rest of
the text.
8
See the non-precedent at: http://www.slideshare.net/BigJoe5/l1a-new-office-sept-13-2013-aao-decision

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Page 17
(l) Intracompany transferees—
* * * * *
(3) Evidence for individual petitions. An individual petition
filed on Form I-129 shall be accompanied by:
* * * * *
(v) If the petition indicates that the beneficiary is coming
to the United States as a manager or executive to open
or to be employed in a new office in the United States,
the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new
office have been secured;
[REQUIRED EVIDENCE: Documentary evidence such as a lease
or rental agreement, or a deed to “sufficient” space to house the
functions and staff of the “new office” as described in other
documentary evidence such as the “Business Plan”.9]
(B) The beneficiary has been employed for one
continuous year in the three year period preceding
the filing of the petition in an executive or
managerial capacity and that the proposed
employment involved executive or
managerial authority over the new
operation; and
[REQUIRED EVIDENCE: A Detailed Job Description listing the
managerial or executive Duties to be performed; USCIS likes to see a
break down that includes the percentage of time devoted to the
various tasks. In the aggregate, the managerial or executive tasks
must be in the majority. Under the preponderance of the evidence
standard, this means over 50% or “more than half”.]
(C) The intended United States operation,
within one year of the approval of the
petition, will support an executive or
9
Although it is NOT required, I recommend striving for a Business Plan that could meet the expectations
expressed by AAO in Matter of Ho, 22 I&N Dec.206 (AAO 1998).

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Page 18
managerial position as defined in paragraphs
(l)(1)(ii) (B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office
describing the scope of the entity, its
organizational structure, and its financial
goals;
(2) The size of the United States
investment and the financial ability of
the foreign entity to remunerate the
beneficiary and to commence doing business
in the United States; and
(3) The organizational structure of the
foreign entity.
[REQUIRED EVIDENCE: Documentary evidence explaining the
functions, funding/budget, and staff of the “new office” such as a
detailed, comprehensive, and credible “Business Plan”.10 Such a
Business Plan for a new office often includes pro forma data for the 1
year, 3 year and 5 year marks or “anniversaries” since opening the
“new office”. Naturally, the staffing levels need to be included along
with job description of any direct or indirect subordinates whether
at they are located at the “new office”, the parent company, or doing
outside work.]
(vi) If the petition indicates that the beneficiary is coming
to the United States in a specialized knowledge
capacity to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new
office have been secured;
10
Although it is NOT required, I recommend striving for a Business Plan that could meet the expectations
expressed by AAO in Matter of Ho, 22 I&N Dec.206 (AAO 1998).

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Page 19
(B) The business entity in the United States is or
will be a qualifying organization as defined in
paragraph (l)(1)(ii)(G) of this section; and
(C) The petitioner has the financial ability to
remunerate the beneficiary and to commence
doing business in the United States.
[NOTE: Assigning L-1 staff to “other employers” is specifically
prohibited if that “other employer” actually exercises control over
the L-1 worker and his or her work, i.e., using the L visa to open up
“job shops” is not allowed.]
(vii) If the beneficiary is an owner or major
stockholder of the company, the petition must be
accompanied by evidence that the beneficiary's services
are to be used for a temporary period and evidence that
the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in
the United States.
(viii) Such other evidence as the director, in his or her
discretion, may deem necessary.
NEW OFFICE PREREQUISITES
To summarize the critical points that must be fully supported upon
filing the individual petition for an L-1 intracompany transferee in a
new office scenario one must at least minimally satisfy certain
prerequisites. Those prerequisites are spelled out in the regulations
at 8 CFR 214.2(l)(3)(v)(A-C) and (vi)(A-C), as well as (vii), if
applicable. The key documentary evidence that is NOT spelled out
for you is the need for a solid Business Plan for that new office;
some type of written confirmation of securing sufficient
physical premises; sufficiently detailed job descriptions for the
old and new positions for the qualified beneficiary.